Sunday, June 21, 2009

Has the RIAA Gone Too Far?

In previous posts here and here and here, the BLS Library Blog has tracked news about the Recording Industry Association of America (RIAA). In what appears to be its latest victory, the RIAA convinced a jury in a Minnesota federal court to enter a verdict against Jammie Thomas-Rasset, a 32-year-old Minnesota woman, for illegally downloading music from the Internet. The jury fined her $80,000 each for 24 songs for a total of $1.9 million. The case was tried earlier in 2007, when a different jury assessed Thomas-Rasset a $220,000 penalty ($9,100 per song). The defendant filed an appeal and won a retrial, which resulted in this week's conclusion.The blogosphere is abuzz with outrage beginning within seconds after the verdict was announced. "I think $2 million for downloading 24 songs strikes almost everyone as being a little disproportionate," says Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation in an article entitled Record Labels' $1.9 Million Win in Thomas Retrial Constitutional?. "According to people who were in the courtroom, almost everyone inside uttered an audible gasp when that verdict came in." The size of the fine was guided by U.S. copyright law, which provides for a penalty of anywhere from $750 to $150,000 per violation. It was up to the jury, however, to decide where to land within that spectrum. The problem, von Lohmann says, is that there are no meaningful guidelines on how that decision should be reached. "The copyright law entitles people to essentially pull a number out of a hat, all the way up to $150,000 per song," he says. "If the copyright law were more reasonable--if, say, you had to make some sort of reasonable guess as to what the actual harm was--then I think juries would come in with more reasonable results."

The Supreme Court has previously indicated that "grossly excessive" punitive damage awards are a violation of the U.S. Constitution. An award can be considered "grossly excessive" if there's too big of a gap between the actual harm done and the amount of money being named. Courts can also consider the "degree of reprehensibility" of the defendant's actions, along with how the penalty compares to similar ones issued in the past. It seems, then, there may be a clash between two ideals: The parameters of the copyright law and the protection provided by the Constitution. What's more, as the Electronic Frontier Foundation points out, recent Supreme Court rulings suggest a jury should determine damages based only on what's justified for the single defendant--not for the broader purpose of "sending a message" to the general public.

As for what steps the defendant Thomas-Rasset will take next, she could move to settle the case; she could ask the judge to reduce the penalty; or she could file an appeal based on the constitutional concerns. Unlike those found guilty of copyright infringement in the past when the law prevented a copyright infringeement defendant from discharging an award in bankruptcy court, Thomas-Rasset can use the bankruptcy courts to avoid having to pay the full cost. Last year, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court. For more, see CNET's article Bankruptcy Could Protect Jammie Thomas.